ZS v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 22 January 2019 |
| Neutral Citation | [2019] EWHC 75 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2019 |
| Docket Number | Case No: CO/6504/2016 |
[2019] EWHC 75 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/6504/2016
Miss Sonali Naik QC, Miss Bryony Poynor & Miss Miranda Butler (instructed by DUNCAN LEWIS SOLICITORS for the Claimant
Mr David Manknell (instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 29 February 2018, 1 & 2 March 2018 (written submissions: 12 and 23 October and 2 November 2018)
Approved Judgment
Litigation under section 67 of the Immigration Act 2016
This litigation is a further round in the litigation which section 67 of the Immigration Act 2016 has engendered. That section provides:
“(1) The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.
(2) The number of children to be resettled under subsection shall be determined by the Government in consultation with local authorities.”
The background to that provision, intended to provide assistance quickly to a number of unaccompanied asylum-seeking children, UASC, in Europe, has been fully rehearsed in R (Help Refugees Ltd) v SSHD [2017] EWHC 7272 (Admin), [2017] 4 WLR 203, Treacy LJ and Ouseley J, and on appeal, [2018] EWCA Civ 2098, [2018] 4 WLR 168 3 October 2018; Help Refugees. That case primarily concerned the lawfulness of the consultation process carried out by the SSHD for the purposes of the duty which s67 imposed on her in arriving at the number of UASC which would be specified for the purposes of transfer. This number was announced as 350 on 8 February 2017, following a decision to that effect on 20 December 2016. It was increased to 480 at the end of April 2017. Help Refugees also considered a submission about the fairness of the procedure adopted by the SSHD for informing children, whose eligibility for transfer to the UK had been considered, that they were not to be transferred.
Help Refugees is the primarily relevant part of a trilogy of cases which also includes R (Citizens UK) v SSHD [2018] EWCA Civ 1812, 31 July 2018, and R(AM) v SSHD [2018] EWCA Civ 1815, [2018] 4 WLR 123 also 31 July 2018. Citizens UK and AM were concerned with an accelerated procedure adopted by the UK for expediting consideration of children who might be transferred to the UK under the close family link provisions of the EU Dublin III Regulation. However, the judgment as to the fairness of the procedure adopted in that case was applied by the Court of Appeal, in disagreement with the Divisional Court on that point, in Help Refugees. These cases therefore, not surprisingly, generated a round of written submissions and further evidence, concluding on 2 November 2018. The fairness of the procedures which the Court of Appeal considered arose as part of the procedural fairness claim in this case.
After some initial uncertainty, the SSHD accepted, and it was incorporated by consent in a declaration of 16 December 2016, that children transferred under Dublin III, accelerated or otherwise, did not take up any of the spaces for transfer under s67.
Pending the decision in Help Refugees at first instance, cases were stayed in which individual children challenged the policies applied to them, the criteria adopted for deciding eligibility and transfer, and the procedures for informing them of the outcome of the process in their cases. I subsequently made various orders removing the stay in this case, and deciding which issues were to be permitted to proceed and which were unarguable.
This particular case
The impetus behind both the accelerated Dublin III procedure and the passing of s67 was the number of children and the conditions in which they were living in the Calais camp, and also in locations in Greece and Italy. Policies and procedures were adopted by the SSHD to give effect to s67. Early on, children were considered for transfer under Dublin III and s67 in the same process. ZS is one such child. He was in the Calais camp; when the occupants were removed in October and November 2016, he was taken with other children to one of a number of CAOMIs, (Reception and Orientation Centres for Unaccompanied Minors), across France, where further interviews took place between 16 and 25 November 2016. He was interviewed in Luchon, in the south of France. He was found not to be eligible for transfer under s67. He was told of that decision by the French authorities at the CAOMI on 16 December 2016. He met the arrival dates criteria, but did not in fact meet any eligibility criteria, including the nationality criterion as he was neither Syrian or Sudanese; he had only ever claimed to be Afghan; he was also over 12. He has not claimed asylum in France, where he remains in the care of the French authorities. The arrival dates in Europe and in Calais related respectively to the EU/Turkey agreement, and to the desire of France that s67 should not become a “pull factor” towards France and Calais.
Duncan Lewis, solicitors who were already engaged on his behalf, brought proceedings on 23 December 2016, on a variety of grounds, including the unlawfulness of the nationality criterion for eligibility for transfer, the absence of other criteria, and the fact that the eligibility criterion enabling transfer on the grounds of being at a high risk of sexual exploitation could only operate upon a referral from the French authorities. ZS also challenged the fairness of the procedure adopted for deciding on and giving decisions on transfer. The SSHD agreed to consider the exercise of her residual discretion but on 3 March 2017 decided not to permit him to enter the UK. He challenges that decision as well. Further arrangements were later made with the French authorities in relation to children in France, and Detailed Process Guidance (“DPG”), was issued to cover this. The lawfulness of that DPG is challenged, by reference to the extent to which it was publicly known or known to those who needed to know of it to operate it. I shall have to return later to the nature of the grounds which I permitted to be argued in view of Ms Naik QC's skeleton argument for ZS.
At the time these proceedings began, there were two schedules of Interested Parties, who were other children represented at some stage by Duncan Lewis; those were children who either had, or had not, received notification of the SSHD's decisions that they were not to be transferred. I ruled at a hearing in December 2017 that they should cease to be Interested Parties because of uncertainty as to their whereabouts or their continuing interest in the litigation.
The facts
I need to start with the policies which the SSHD issued for the purpose of giving rapid effect to s67, because of the situation developing in the Calais camp. Draft Guidance and criteria for processing cases from Calais under s67 was made available to caseworkers on 20 October 2016. This was updated on 24 October 2016, to deal with what Mr Cook, the Home Office Head of EU and International Asylum Policy, described in his first witness statement in Help Refugees at [91], as a “fluid and fast-moving situation on the ground at Calais”. The Guidance was finalised on 13 October. These were evolutions of Version 1 of the “Guidance: Implementation of section 67 of the Immigration Act 2016 in Calais”.
Version 2 was issued to caseworkers on 8 November 2016, and published on 14 November 2016. Although the stated focus of the Government in the operation of s67 was on children from France, Greece and Italy, this version called the Calais Guidance, applied to children who had arrived at the Calais camp before 24 October 2016. It was the version applicable and applied to the decisions in ZS's case. The general eligibility criteria for such children were as follows:
“To be eligible a child must meet one of the following criteria:
• be aged 12 or under, or be aged under 18 and the sibling of an eligible child aged 12 or under
• be referred directly by the French authorities, or by an organisation working on behalf of the French authorities, to the Home Office as being at high risk of sexual exploitation
• be aged under 18 and of Sudanese or Syrian nationality (these nationalities have at first instance asylum grant rate in the UK of 75% or higher, based on the asylum statistics for the period from July 2015 to June 2016)
And they must meet all of the following criteria:
• transfer to the UK must be determined to be in the best interests of the child
• the child must have arrived at the Calais camp on or before 24 October 2016
• the child must have arrived in Europe before 20 March 2016
Decision criteria
• A child should proceed to Stage 2 if one of the following applies to them:
• they are aged 12 or under
• they are aged under 18 and are a sibling of an eligible child aged 12 or under
• they are under the age of 18 and of Syrian or Sudanese nationality
Referrals
An individual can also proceed to Stage 2 if they have been referred to the Home Office by the French authorities, or an organisation working on behalf of the French authorities, on the basis that they are at high risk of sexual exploitation, provided they are under 18.”
The child was to be given the benefit of the doubt in the age assessment.
Stage 2 included the “Best Interests Determination” for children who had not been screened out at the first stage. Its purpose was to establish whether it would be in the child's best interests to be accommodated as an unaccompanied asylum-seeking child in the UK or to enter the French system. The guidance set out the issues to be addressed and the practical arrangements for...
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